Prosecutors Issuing 'Fake Subpoenas' Because They're Awful People
Throwing a threat on something doesn't make it real.
If the awesome power of the state doesn’t terrify innocent people into doing the bidding of prosecutors, perhaps they could consider explicitly threatening innocent witnesses to get their way?
To most that would be a bridge too far, but to the folks working in the New Orleans District Attorney’s Office, adding that additional layer of fright to the proceedings is part of the fun. Last week, the Lens reported that the D.A.’s Office maintained a practice of issuing “fake subpoenas” in a naked effort to coerce cooperation.
When confronted with the fact that the prosecutors did not, in fact, have any authority to threaten to jail people for failing to serve the Office’s every whim and that the practice is unethical if not illegal, they proudly adopted the time-honored stance of blaming the victims. Which is actually par for the course for them: this is the same office that issues arrest warrants for the victims of crimes if they aren’t sufficiently cooperative with the investigation.
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As a write-up in the Times-Picayune explains:
Letters, phone calls, and visits from representatives of the New Orleans District Attorney’s Office were apparently not doing enough to put the fear of Leon Cannizzaro into witnesses, possible witnesses, and people the DA believed might possibly know something about anything.
So, the office began issuing special notices to those they wanted to invite for a chat. Instead of something like, “The District Attorney of the Parish of Orleans requests the honor of your presence,” the DA’s invitation committee went with: “SUBPOENA: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.”
Except it was not (a) a subpoena, (b) carried with it no risk of fine or imprisonment, and (c) recipients were entirely free to disobey the notice.
Other than that though…
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“There’s no question this is improper,” said Pace University law professor Bennett Gershman, a former prosecutor in New York City and an expert in prosecutorial misconduct.
“Clearly, it’s unethical because the prosecutor is engaging in fraudulent conduct,” he said.
Colin Reingold, an attorney with Orleans Public Defenders, said the practice “borders on fraud or forgery, and certainly I see ethical problems with compelling someone to come in under false pretenses.”
In an interview with The Lens, however, the D.A.’s office decided to take a page out of the Sean Spicer handbook and double down on the indefensible:
Assistant District Attorney Chris Bowman, who serves as Cannizzaro’s spokesman, defended the use of the documents, which he called “notifications” or “notices.”
“The district attorney does not see any legal issues with respect to this policy,” he said.
Cannizzaro’s office deals with “an extraordinary number of cases,” he said, including many in which potentially crucial witnesses are reluctant to talk.
“Maybe in some places if you send a letter on the DA’s letterhead that says, ‘You need to come in and talk to us,’… that is sufficient. It isn’t here,” he said. “That is why that looks as formal as it does.”
This is the troubling insight into prosecutorial groupthink that gets exposed in a story like this. When confronted with the minor obstacle of witnesses exercising their basic freedom to not speak the logical next step is to just lie about their power to punish non-compliance.
Many prosecutors are great people — I’ve known and worked with several at various stages of the government-to-white-collar-defense revolving door — trying to do the right thing. But that’s the danger when any institution vested with tremendous resources and a sense of moral superiority starts rolling down a slippery slope. The Stanford Prison Experiment is just an extreme example of what good people can overlook when they think it’s their job. Good people can truly become unwitting awful people with enough authority and sense of entitlement.
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That’s how stuff like “fake subpoenas” not only happen, but get normalized to the extent that no one on the inside even sees the problem.
In the aftermath of this report, the Orleans Parish D.A.’s Office has announced that they will end this practice, which is the right result, but that it wasn’t their first response to criticism is the real problem.
In the Lens interview, Bowman dropped the most-telling quote:
“It’s no different than if we just put a letter out on our letterhead,” Bowman said.
Except… he already admitted that they only do this because receiving a letter isn’t “sufficient” in New Orleans. That aside, this quote is kind of true. To the average person, a letter from a prosecutor demanding to talk to them does carry with it all the weight of a legal threat. Especially when the letter includes all the typical lawyerly bluster.
And yet, the fact that a prosecutor would admit that they see a formal threat of “fine and imprisonment” as no different than their standard letterhead says a lot about the culture of that office.
Orleans Parish prosecutors are using fake subpoenas to pressure witnesses to talk to them [The Lens]
District attorney’s ‘fake subpoenas’ degrade the legal process: Opinion [Times-Picayune]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
